- within Transport, Privacy and Energy and Natural Resources topic(s)
If you've been following the drama unfolding on the TV show "The Traitors" (U.S.), you're already familiar with the tartan-clad chaos, castle intrigue, and Alan Cumming's fashion statements. One particular outfit—a sleeveless jumper bedazzled with the word "Murrrder" in glitter—has now taken center stage in a rather traitorous IP dispute. Scottish designer Siobhan Mackenzie claims she initially created the "Murrrder" design for Alan Cumming as a straightforward retail purchase. There was no licensing deal, no IP transfer, and definitely no "we're about to mass-produce this" agreement. However, NBC, the producer of the American series, allegedly began selling official merchandise featuring the same "Murrrder" wording on hoodies and T-shirts, all without Mackenzie's consent. Mackenzie found this not only financially upsetting but also felt that mass-produced merch clashed with her brand's values of craftsmanship.
As the drama unfolded, Mackenzie took her grievances public, and The Scotsman reported that several "Murrrder" items were swiftly removed from NBCUniversal's online store. This action is not an outright confession of legal guilt but more akin to the corporate equivalent of pretending something potentially unpopular never happened.
However, as an IP lawyer (U.S.-based), the question arises in my mind as to whether "MURRRDER" can even be a U.S. trademark for clothing? In the United States, slogans or words prominently displayed on apparel are often considered ornamental, i.e., more for decoration than branding. The U.S. Patent and Trademark Office (USPTO) notes that a slogan on a T-shirt may be seen as mere ornamentation because consumers perceive it as flair, not as an indicator of the source. As a result, if Mackenzie tried to register "MURRRDER" for clothing in the U.S., she would likely face an ornamental refusal unless she could demonstrate that the wording functions as a trademark. This would require showing that consumers recognize it as a brand identifier through neck labels, hang tags, or other brand-like placements. To achieve this, she'd need to prove acquired distinctiveness (secondary meaning) under Section 2(f), meaning U.S. consumers have come to identify "MURRRDER" with her brand specifically, not just as a fun, murder-themed design. The USPTO's guidance and rules make it clear that ornamental matter can be registered if it has acquired distinctiveness as a mark. For those familiar with USPTO trademark cases, this might remind you of the "Swallow Your Leader" situation involving Olin Corp., where the phrase was deemed merely ornamental and not a trademark. Essentially, catchy text on a chest doesn't automatically translate to trademark rights.
Even if MURRRDER struggles to get onto the Principal Register because the USPTO views it as ornamental, that doesn't mean Mackenzie is out of legal options. Federal trademark law can still bite without registration. Section 43(a) of the Lanham Act provides a cause of action for false designation of origin or false association, and it can protect unregistered marks and trade dress where the defendant's use is likely to cause confusion about affiliation, sponsorship, or approval. But (Mackenzie would still likely need to show the threshold requirement that she owns a valid, protectable mark—meaning it's distinctive either inherently or through secondary meaning/acquired distinctiveness. Put differently, unfair competition claims don't magically rescue a mark that consumers don't recognize as pointing to a single source. What helps her here is the specificity of the branding: "MURRRDER" with three R's isn't just the word "murder"—it's a stylized, meme-able, show-linked, glitter-forward spelling that could support an argument for distinctiveness (or at least "secondary meaning in the making") when paired with evidence of consumer recognition. Moreover, it was copied, and the argument exists why it would be copied if consumers did not recognize MURRRDER as having achieved a level of source-identifying function.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
